Constitutional Law
Constitutional Law
The NextGen bar exam tests judicial review, federalism, separation of powers, due process, equal protection, and the First Amendment. Questions often ask whether a government act is valid, which level of scrutiny applies, or whether a claimant has standing.
Core rules
- Standing: injury in fact, causation, and redressability; ripeness and mootness; political questions are nonjusticiable.
- State action: the Fourteenth Amendment requires state action; the Thirteenth Amendment does not.
- Procedural due process: notice and a meaningful hearing before deprivation of life, liberty, or property.
- Substantive due process and equal protection: strict scrutiny for suspect classifications and fundamental rights; intermediate scrutiny for sex; rational basis for most economic and social classifications.
- Commerce Clause: Congress may regulate channels, instrumentalities, and activities substantially affecting interstate commerce; the dormant Commerce Clause limits discriminatory state laws.
- First Amendment: content neutrality; time, place, and manner rules; speech versus conduct.
Worked example
A state law gives a hiring preference to veterans for all public jobs. A nonveteran challenges it under equal protection. Veterans are not a suspect class, and public employment is not a fundamental right, so rational basis applies. The state need only show a legitimate interest and a rational relationship. A preference for those who served is rationally related to that interest, so the law likely survives.
Traps
Do not apply strict scrutiny to every classification. Identify state action before applying the Fourteenth Amendment. Standing requires a concrete injury, not just disagreement with government policy. Commercial speech receives intermediate scrutiny, not the strictest review.